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Column: After Arizona fiasco, back to the future for death penalty?

By Byron York, Syndicated columnist

Updated:
07/30/2014 01:27:27 PM MDT

The surreal national debate over the death penalty reached a climax of sorts July 23 in a prison execution chamber in Florence, Arizona. Double murderer Joseph Wood was put to death by lethal injection shortly after his lawyers went to the Supreme Court raising questions about the drugs that would be used to kill him.

The justices turned Wood down, but his attorneys were right to raise concerns. It turned out Wood's execution took two hours, as he lay unconscious on a gurney, gasping and waiting for the drugs to work.

Coming after other botched lethal injections in Oklahoma and Ohio, the Wood execution gave renewed energy to activists calling for an end not only to executions by lethal injection but by all other means as well.

"The death penalty simply has no place in this country," said Brian Stull, an attorney for the ACLU's Capital Punishment Project. "As method after method of state-sponsored killing has been deemed barbaric and archaic, states are left scrambling to invent new ways to execute."

In this case, Arizona scrambled to find drugs to execute Wood because anti-death penalty activists like Stull have pressured pharmaceutical companies to stop supplying effective drugs to executioners.

Still, the Wood fiasco could start a new and productive debate on capital punishment, in part because it spurred an extraordinary statement from a well-respected federal judge.

Alex Kozinski, chief of the 9th U.S. Circuit Court of Appeals, was one of the jurists who listened to Wood's plea for a stay of execution based on concerns about the lethal injection drugs. The court issued a stay, over Kozinski's dissent, sending the case to the Supreme Court, which ultimately allowed the execution to proceed.

Kozinski focused his dissent on the broader issue of lethal injection. Older, now-abandoned methods — hanging, firing squads, the electric chair, the gas chamber — were all devised specifically to kill people, he wrote, and did so pretty well. But lethal injection took drugs originally intended to save lives and used them to kill.

"Subverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure," Kozinski wrote. Using drugs for executions was "a misguided effort to mask the brutality of executions by making them look serene and peaceful."

If the United States is going to carry out executions — and public support stands at about 60 percent today — Kozinski suggested returning to an old, highly effective method: the firing squad. "Eight or 10 large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time," he wrote.

In a phone interview, Kozinski said he could understand pharmaceutical companies retreating from involvement in capital punishment. "I have some sympathy for the drug manufacturers," he said. "They're not in the business of killing people. They're in the business of healing people."

Gun makers, on the other hand, widely sell their products to law enforcement agencies. "We as a society accept weapons as a means of carrying out lawful violent activity," Kozinski added, pointing to the examples of police, military and security guards.

Of course, an execution by firing squad, unlike lethal injection, would involve blood. But Kozinski concluded, "If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all."

One side effect of the debate over death penalty methods is that it draws attention away from the original crime. The Arizona case began in August 1989, when Wood showed up to see an ex-girlfriend, 29-year-old Debbie Dietz, at the Tucson auto body shop her family owned. Dietz's father, Eugene, was also there. Wood shot Eugene Dietz and then, as Debbie tried to help, Wood grabbed her, said, "I have to kill you, bitch," and shot her, too.

Father and daughter died on the spot. Debbie Dietz's sister, Jeanne Brown, watched it happen.

After Wood's execution, Brown reacted emotionally to observers who called the lethal injection "excruciating." "You don't know what excruciating is," she said. "Excruciating is seeing your dad lying there in a pool of blood, seeing your sister lying there in a pool of blood. That's excruciating. This man deserved it."

Yes, he did. But how to refocus the debate away from methods and back to justice in heinous cases like Wood's? Alex Kozinski has an idea, and after the Arizona debacle, perhaps some state officials across the country will start listening.

Byron York is chief political correspondent for The Washington Examiner.

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